It is now more affordable to make a baby…

As of December 2015 the Ontario government will start to pay for one round of IVF for people with infertility, which includes people who cannot conceive naturally due to sexual orientation (i.e. “non-medical infertility”). This is great news because many same-sex couples cannot become parents due to financial barriers, as IVF costs many thousands of dollars.

Gay couples will be able to access funding to retrieve eggs from an egg donor, create embryos with their own sperm, and then have the embryos transferred to a surrogate one at a time to avoid multiples. Lesbian couples will be able to access funding to retrieve eggs from one partner, create an embryo with donor sperm, and then transfer the embryo to the other partner, should that be how they choose to conceive.

Transgendered individuals will also able to access the funding. For example, a transgendered male may have frozen eggs prior to transitioning. The eggs can be thawed and fertilized using a donor or partner’s sperm, or fertilization can occur prior to freezing. The embryo could then be implanted into a person’s uterus, either a surrogate, female partner or FTM person depending on the circumstances of the transition. People pursuing single parenthood will also be eligible regardless of sexual orientation.

A surrogate or donor who helps another person create a family will remain eligible for funding to have their own child through IVF. The funding won’t cover everything, but it will help offset the costs of fertility treatments tremendously. Other costs that may still have to be incurred include costs relating to fertility medications, laboratory procedures, surrogacy agreements, donor agreements, independent legal advice for surrogate/donor, and DNA testing. If an embryo transfer does not result in a pregnancy, the intended parents can try again with the remaining frozen embryos. Once the embryos are gone, intended parents will have to pay out-of-pocket to make more embryos.

But don’t forget…

In cases involving known donors or surrogates, it is REALLY important that all parties receive legal advice and that the parties enter into an agreement – BEFORE embryos are created. The contract should not be of the fill-in-the-blank variety, but customized to your situation.

Will you want the donor to play a part in your child’s life? Or, if you are the donor, will you want to be involved with the child? How will the child refer to the donor or surrogate? For example, is the sperm donor going to be “uncle”? Will the surrogate try IVF again if the first attempt fails? Will the intended parents reimburse the donor or surrogate for any out-of-pocket expenses? Will the surrogate abort the pregnancy if there is a high chance of a genetic disorder? Where will the child be born? In a hospital? With a midwife? Is the donor willing to donate again so that a younger child can be genetically related to his or her sibling?

Too often I see clients who acquired a contract and just inserted their own names without any discussion about the relationship. Or they re-used their own contract even though the donor or surrogate is a different person the second time around. THIS IS A BAD IDEA! There are many legal ramifications to third party reproduction and there are multiple opportunities for disputes to arise. While the process usually goes very smoothly, it does so because there are many checks and balances to ensure this, with a contract being one of several important measures.

The IVF funding will provide a wonderful opportunity for people to become parents. For those who long to be parents this is an invaluable gift, but please think through and discuss your relationship with the third party, and put your agreement in writing. Creating your family is not the place for short-cuts.

I am very excited about the opportunities this funding brings and cannot wait to help more people create their families in 2016!






About the Author

Lisa Feldstein is the principal lawyer at Lisa Feldstein Law Office. She is a graduate of Osgoode Hall Law School and the University of Guelph. Lisa practices in the area of Family Health Law™, which includes reproductive law, human rights, privacy, mental health and other health law matters. Lisa has presented at the 519 Church Street Community Centre and PFLAG Canada (York Region), and has been interviewed on Proud FM. She has helped many couples build their families through third party reproduction. Lisa has been teaching negotiation at Osgoode Hall Law School since 2010. She was recently awarded a 2014 Canadian Law Blog award for Best Practitioner blog, and a 2015 Precedent Setter Award.